by Sarah Sutusky
If there is one thing we can all agree on, it is that 2020 has been a very strange year. It seems as though everyone has been affected in some way by the COVID-19 pandemic, whether it be personal or family illness, home schooling of children, working from home, or just the stress of a worldwide pandemic. Throw in the killer bees, the loss of my personally beloved Jeopardy host, and a presidential election, and this year is not one we will soon forget… unfortunately.
While you may have either directly or indirectly dealt with whether COVID is compensable in SC, I have seen yet another related issue come up time and again. What do you do with the claimant who does not want to treat, citing general COVID concerns? I am hearing time and again that of claimants who do not want surgery now or do not want to go to therapy now because they do not want to be out in the pandemic world. However, they are not wanting to refuse treatment forever, just for now. The question becomes whether a claimant can refuse treatment due to fear of exposure to COVID for some indeterminable amount of time.
While I can surely feel empathy for this being a high-risk asthma individual myself, a delay in treatment can cause a multitude of issues from a defense standpoint. First, if the person delays necessary and time-sensitive treatment, they may do irreparable damage. Delays in treatment can lead to conditions getting worse, poor outcomes, and additional issues such as depression or new overuse injuries. Second, if you are paying a person to be out of work, a delay in treatment will probably increase your claim exposure and value. If you must pay someone to be out of work for months and months while they await a pandemic to end, you could pay double or more the normal amount of TTD you would owe. Finally, if a person is not treating and not getting better, particularly if they are out of work, the chances of them having permanent issues increases. Unlike fine wine, workers’ compensation claims do not get better with age!
If you have a claimant delaying treatment due to COVID concerns, the question becomes what can you do about it. The first thing to consider is what are the claimant’s concerns. If they are actually sick from COVID and cannot treat, that is a different situation than the person simply not wanting to go out into the world for fear of exposure. If you have a claimant with COVID, allow them to recover and then resume treatment. Besides, they should not be out if they are positive!
If they have general exposure concerns, there are options and ways to alleviate those issues. First, if you are paying TTD, you may be able to suspend TTD in SC if claimant refuses medical treatment. S.C. Code § 42-9-60 provides that refusal to accept treatment bars an injured worker from compensation during the period of refusal. If you have a true refusal of treatment, you may be able to suspend Claimant’s TTD benefits. I would encourage you to consider each situation on its own as the facts of each individual case will matter. Whether or not there is a refusal of treatment is going to be considered on a case by case basis by the Commission. Consider such facts as whether claimant missed just one appointment or multiple, whether claimant is communicating with you about refusing or missing treatment, or whether some special health situation may apply. If you communicate with claimant about issues related to treatment during COVID times, you may be able to resolve the issue with the claimant. Perhaps explaining to the claimant why treatment is important or why delays are an issue will encourage claimant to be medical compliant. As we have all learned, the virtual world has boomed this year, and medical treatment is no exception to this. Many providers offer and encourage virtual visits and virtual treatment may be a solution to claimant’s COVID concerns.
If you are not paying TTD, then the threat or possibility of ending weekly checks does not help with treatment issues. But communicating with the claimant and offering virtual visits may still help with resolving treatment issues. And if all else fails, whether the person is on TTD or not, perhaps the claimant has an interest in settlement. Settlement of the entire case would eliminate the COVID treatment issues for all parties.
I would be remiss not to leave you one final warning and that is to ensure you follow TTD suspension rules, if you decide you want to suspend TTD. The full rules would require a whole other article, but when in doubt, pick up the phone and give one of our attorneys a call. We are always glad to hear about your specific situation and advise on options to suspend TTD. Hoping you all end 2020 on a high note and that the fast-approaching new year is a healthy and happy one!